SUPREME COURT 15. Legal Department Main Article: 2019/ 1938 Decision: 2020 / 675 Decision Date: 19.02.2020
Oct pay payable in TL, calculated by experts, the court should have decided to partially accept the claim, while in addition to accepting other claims, without cash collateral deduction, it was not correct to conclude that cash collateral deduction would be made as a result of the incorrect assessment due to unpaid work receivables and a smaller amount of entitlement would be received. it has been found appropriate.
(492 SK Md. 42)
Since it is understood that the decision dated and numbered above was requested by the party’s deputies and submitted within the time limit of the appeal petitions, the necessary examinations were made by reading the documents in the file:
decision
litigation, business
It is related to the collection of paid work costs and cash guarantee deduction receivables arising from the contract and the return of performance guarantee letters. The court’s decision on the partial acceptance of the case has been appealed by the lawyers of the parties.
1- The articles in the file, the evidence on which the decision is based, legally compelling reasons and, in particular, the return of final guarantees.
10.4.1 Of the Contract. 45 of the General Specification of Construction Works, which must be applied in accordance with the article. according to the article, if it is determined that the contractor has no debt to the administration and the provisional acceptance report is approved, half of the final guarantee will be returned. It has been stated that the company will be refunded if it brings a termination certificate and the cash guarantee deduction is refunded.
30/2 of the contract. In the article, the final accounts are subject to the approval of the administration, the final liquidation account is arranged by the court due to the defendant employer’s avoidance of final acceptance, the contractor has no debt to the employer according to the final liquidation account arranged, the article of the non-litigation SGK … Provincial Directorate dated 31.01.2019
Since it is understood that the plaintiff has no debt to SGK related to the work subject to the contract, there was no error in the provisions regarding cash collateral deductions and the collection and return of performance guarantee letters.
2-As for the plaintiff’s appeal petition dated Dec. 10.05.2012 signed between the parties;
30/2 of the contract. In the last sentence of the same article, after it is stated that a guarantee letter will be received at the rate of 5% of the completed productions, but the final account has not been given to the administration, this guarantee letter will not be returned unless the final accounts are approved by the administration.
It has been decided that these amounts will not be paid unless the final accounts are approved by the administration. As accepted by the court, since it is understood that the liquidation final account was issued with the expert report received and that there are unpaid work pay amounting to TL 220,312.19 according to the plaintiff contractor’s liquidation final account, the liquidation final account was issued by the court, and this transaction is in the nature of the court’s approval of the final account.
30.2 Of the contract. due to the article, it is not possible to deduct the cash guarantee. Pays payable claims in this case, in addition to accepting other claims, the court should have decided to partially accept the unpaid claim over 220,312.19 TL calculated by experts and without a cash guarantee, but since it is not correct to conclude that a smaller amount of claim will be received by deducting the cash guarantee from the unpaid work cost due to misjudgment, it was deemed appropriate to overturn the decision.
CONCLUSION:
All the defendant’s objections were rejected for the reasons explained in the first paragraph above, and the decision was overturned in favor of the plaintiff by accepting the plaintiff’s objections in accordance with the second paragraph, Law No. 5766 11. pursuant to Article 42/2-d of the Fees Law as amended by the article, it was unanimously decided on 19.02.2020 that the 218.50 TL application fee to be received should be deducted, the appeal fee should be returned to the applicant, if any, the remaining 97.20 TL appeal decision fee should be collected from the applicant and a request for correction of the decision may be filed against the decision within 15 days from the date of notification. (¤¤)</b